COST BITES 38: THE COSTS OF AN APPEAL SHOULD BE PAID BY THE LOSING PARTIES
In Frasers Group Plc v The Official Receiver & Ors [2022] EWHC 3184 (Ch) Sir Paul Morgan (sitting as a judge of the Chancery Division) held that the appropriate order, following a successful appeal, was for the respondents to the…
DEFENDANT GRANTED SUMMARY JUDGMENT ON A SINGLE EVIDENTIAL ISSUE: CPR 24.2 CAN BE USED IN THIS CONTEXT
In Holdgate v Bishop [2022] EWHC 2850 (KB) Master Thornett granted the defendant’s application for summary judgement on a specific issue. The Master granted the defendant judgment on the issue of whether the claimant had instructed solicitors to sell land…
CONSEQUENTIAL ISSUES AFTER JUDGMENT IS HANDED DOWN: NO TIME TO START ACTING UP
The judgment of Mr Justice Foxton in Royal & Sun Alliance Insurance Ltd & Ors v Tughans (a firm) [2022] EWHC 2825 (Comm) shows considerable concern about the way in which parties are attempting to deal with issues following the…
ESCAPING FIXED COSTS: KINGS CHAMBERS WEBINAR: 2nd NOVEMBER 2022
My colleagues Andrew Hogan and Paul Hughes are presenting a webinar on the 2nd November 2022 4 – 5pm on “escaping fixed costs”. The webinar is free. Booking details are available here. NB the live event is now “full”. It…
EXPERT WAIVED PRIVILEGE WHEN MENTIONING ANOTHER REPORT IN HIS REPORT: “TRIAL BY AMBUSH IS NO LONGER THE ORDER OF THE DAY”
We are looking again at the judgment of HHJ Paul Matthews (sitting as a High Court judge) in Pickett v Balkind [2022] EWHC 2226 (TCC) . Again it is in relation to an issue relating to experts. An expert had…
QOCS APPLIES TO LEGALLY AIDED CASES: HIGH COURT DECISION
In Macaulay v Karim & Anor [2022] EWHC 1270 (SCCO) Senior Costs Judge Gordon-Saker found that a legally aided claimant had the protection of QOCS. A defendant who had a costs order in its favour could not enforce that order…
“SUBSTANTIAL INJUSTICE” AND FUNDAMENTAL DISHONESTY: WE’LL KNOW IT WHEN WE SEE IT BUT WE DON’T SEE IT HERE: JUDGE’S DECISION NOT TO IMPOSE USUAL PENALTIES OVERTURNED ON APPEAL
In Woodger v Hallas [2022] EWHC 1561 (QB) Mr Justice Julian Knowles overturned a decision of the Circuit Judge that the usual principles of a finding of fundamental dishonesty should not apply to the claimant. The judgment involves a consideration…
SUMMARY ASSESSMENT OF COSTS: HOURLY RATE TOO HIGH AND LAWYERS SHOULD LEARN TO DELEGATE
In Rushbrooke UK Ltd v 4 Designs Concept Ltd [2022] EWHC 1416 (Ch) HHJ Paul Matthews (sitting as a Judge of the High Court) considered the costs to be paid to a successful respondent. The judge did not allow the…
EXPERT WHO WALKED “ON THE PAVEMENT HAND IN HAND” WITH THE CLIENT: EXPERT WITH ALL THE HALLMARKS OF THE MENTALITY OF AN ADVOCATE
We have already looked at the judgment of Mr Justice Mostyn in Gallagher v Gallagher (No.2) (Financial Remedies) [2022] EWFC 53 in relation to costs. There are some telling observations in that judgment in relation to the role of the expert…
BILL OF COSTS MUST INCLUDE THE NAME OF FEE EARNERS WHO DID THE WORK: COURT OF APPEAL DECISION TODAY
In the judgment today in AKC -v- Barking, Havering & Redbridge University Hospitals NHS Trust [2021] EWHC 2607 (QB) the Court of Appeal upheld the point that the name of each fee earner involved must be included in the electronic…
SOLICITOR CANNOT TAKE OVER CLIENT’S CAUSE OF ACTION: COURT OF APPEAL CONSIDERS ISSUES RELATING TO CHAMPERTY
In Farrar & Anor v Miller [2022] EWCA Civ 295 the Court of Appeal upheld a decision that a firm of solicitors could not continue an action that had been assigned to them by their client. “a champertous agreement…
THE SUPREME COURT CONSIDERS THE CONSTRUCTION OF STATUTES AND PRE-LEGISLATIVE MATERIAL
In O (a minor), R (on the application of v Secretary of State for the Home Department [2022] UKSC 3 the Supreme Court considered the issue of statutory interpretation and the use of external material, in particular official material. There…
COMMON LAW DOCTRINE OF MISTAKE APPLIES TO PART 36 OFFERS: HIGH COURT DECISION
I am grateful to barrister Richard Wilkinson for sending me a copy of the decision of Master Thornett in O’Grady -v- B15 Group Limited [2022] EWHC 67 (QB). The Master decided that Part 36 offers were subject to the doctrine…
“THE FUNDAMENTAL IMPORTANCE OF ADEQUATE PLEADINGS”: CASE REFERRED BACK FOR A SECOND TRIAL BECAUSE CLAIMANT’S PARTICULARS DID NOT STATE THE CASE IT ADVANCED
Anyone who thinks that the rules relating to pleadings are now more relaxed and less important should read the decision of Mr Justice Cotter in Charles Russell Speechlys LLP v Beneficial House (Birmingham) Regeneration LLP [2021] EWHC 3458 (QB). This…
SET OFF AND QOCS IN THE SUPREME COURT: DEFENDANT CANNOT SET OFF COSTS ORDERS AGAINST LIABILITY TO CLAIMANT
In the judgment today in Ho -v- Adelkun [2021] UKSC 43 the Supreme Court considered the issue of set off and QOCS. The Court overturned the decision of the Court of Appeal and held that costs orders in favour of…
TRIBUTE TO LORNA COLE, BARRISTER AND HEAD OF CHAMBERS: “INVINCIBLE”
Lorna Cole was called to the Bar in 1951 and was head of chambers at Hull for many years, she sadly died earlier this week. Richard Wright QC, Leader of the North-Eastern Circuit, sent out a tribute to her today…
CONDITIONAL FEE AGREEMENT WAS NOT UNFAIR OR UNREASONABLE: SENIOR COURT COSTS OFFICE DECISION TODAY
In Acupay System LLC v Stephenson Harwood LLP [2021] EWHC B11 (Costs) Costs Judge Leonard rejected a claimant’s argument that a conditional fee agreement it had entered into with a solicitor was unfair, unreasonable and not supported by consideration. (There…
LIMITATION: SECTION 33 CONSIDERED IN THE CONTEXT OF A CLAIM FOR SEXUAL ABUSE: DISCRETION EXERCISED WHEN PROCEEDINGS ISSUED 15 YEARS OUTSIDE THE LIMITATION PERIOD
In AB v Chethams School of Music [2021] EWHC 1419 (QB) Mr Justice Fordham provides a comprehensive review of the principles the court considers when hearing an application under Section 33 of the Limitation Act 1980, particularly in the context…
SNAILS, BOXES, RATES, OFFICES AND CIVIL PROCEDURE: A DRAFT JUDGMENT IS NOT AN INVITATION TO CRITIQUE IT
The judgment of Mr Justice Fordham in Isle Investments Ltd v Leeds City Council (Rev 1) [2021] EWHC 345 (Admin) contains a reminder of the point that a draft judgment is not an opportunity to re-open or critique the substance…
SEEKING SUMMARY JUDGMENT: THERE ARE QUITE STRINGENT RULES: CLAIMANT HAD TO RECTIFY SITUATION TO OBTAIN ORDER
A reminder, if one were needed, that some applications have stringent formal requirements can be found in the judgment of HHJ Cawson QC (sitting as a High Court judge) in Williams & Anor v Simm & Ors [2021] EWHC 121…
PROVING THINGS 195: A CASE WHERE THE RISK ASSESSMENT WAS RELEVANT AND CAUSATION WAS ESTABLISHED
The previous post dealt with a case where a defendant succeeded on appeal because a claimant failed to establish causation. It is interesting to look at actions where this issue of causation has been considered. In Chisholm v D & R Hankins…
AZAM -v- UNIVERSITY HOSPITAL BIRMINGHAM NHS FOUNDATION: THE JUDGMENT AT FIRST INSTANCE: THE DATE OF KNOWLEDGE IN A CLINICAL NEGLIGENCE CASE
Last week I wrote about the defendant’s unsuccessful appeal in Azam v University Hospital Birmingham NHS Foundation Trust [2020] EWHC 3384 (QB). I have been sent a copy of the initial judgment of HHJ Rawlings (2nd September 2019), by barrister John…
CIVIL PROCEDURE BACK TO BASICS 82: PLEADING MITIGATION OF LOSS
One surprising aspect of the defendant’s argument in Tejani v Fitzroy Place Residential Ltd & Anor [2020] EWHC 1856 (TCC) was the assertion that the particulars of claim were defective because the claimant did not plead a failure to mitigate loss. …
CIVIL PROCEDURE BACK TO BASICS 81: THE SUMMARY ASSESSMENT OF COSTS: AVOIDING PROBLEMS
Over the years we have seen a major difference in judicial responses to a failure to have a schedule of costs at a relevant hearing. Some judges are forgiving, some simply order no – or minimal – costs. In SRA…
ALLEGATIONS OF DISHONESTY LEAD TO INDEMNITY COSTS AGAINST THE DEFENDANT: THE HIGH RISK STRATEGY OF BUILDING HIGH WALLS ON LOW FOUNDATIONS
In the previous post I reported on the decision in Kilbey -v- Arien Contractors Ltd (KilbeyJudgment) and noted that there had been an award of indemnity costs against the defendant. I am grateful to barrister Hannah Godfrey for sending me…
COVID REPEATS 44: DO YOU WANT TO BE LED, BARE HEADED, AROUND WESTMINSTER HALL FOR DRAFTING OVER-LENGTHY SKELETONS?
This series is going to end at 50. I thought I’d end it by looking at some of my personal favourite posts and cases on this blog. We’ll start with the Court of Appeal in Caldero Trading -v- Leibson [2014] EWCA…
COVID REPEATS 42: FRAUDULENT CLAIMANTS AND THE NEED FOR SELF-PROTECTION BY LAWYERS
Today we are looking at a post that was written in 2016 about the need for “self protection” by lawyers. A report in Litigation Futures the previous week illustrated this need. The headline says it all “Insurance Fraudster who tried to…
COVID REPEATS 38: WHEN AN EXPERT FORGET TO MENTION THAT HE HAD BEEN A GOOD COLLEAGUE OF THE DEFENDANT
There has been no shortage of cases about experts to revisit on this blog. For the last look back at experts were are returning to a fairly unusual case. The facts in relation to the Defendant’s expert witness in the…
COVID REPEATS 15: MISSIVES FROM THE BENCH: “THAT ONE’S HALF BLIND AND HALF DEAF – I CALL HIM THE COURT OF APPEAL”
Today we are looking at a post about helpful, or otherwise, judicial observations. These came from Twitter in November 2018. DJ Tynas at Macclesfield I had a hearing in chambers. He was fond of keeping his dogs in there….
COVID REPEATS 11: IF THEY SAY IT WILL BE “GOOD EXPERIENCE FOR YOU” – WATCH OUT…
Here we are looking again at the good advice given by lawyers, and others, on Twitter in January 2017. It may make more sense to start at the bottom of this post and follow the timeline upwards. Whichever way you…
THE (NOT SO) LONELY LITIGATOR’S CLUB 11: MORAYO FAGBORUN BENNETT
The next member of our club is Morayo Fagborun Bennett a barrister at Hardwicke. She recently lost her home office as it became a bedroom for her youngest child. This couldn’t have happened at a better time… Where are…
THE (NOT SO) LONELY LITIGATOR’S CLUB 9: SUE JAMES
I am taking advantage of this series to both make new friends and catch up with old ones*. I have known Sue James since we were at university together (a year or two ago now). We were both involved in…
JOHN COLLINS: BARRISTER, SCHOLAR AND THE KINDEST PERSON YOU ARE EVER LIKELY TO MEET
Earlier this evening Richard Wright, the leader of North-Eastern Circuit announced the death of barrister John Collins, of Park Square, Barristers, Leeds. “Today the @ne_circuit lost one of its finest. John Collins called to the Bar 1956 and working to…
LIVERPOOL CIVIL COURT HAS OPENED A TWITTER ACCOUNT: JUST WHEN WE NEED A LITTLE HELP FROM OUR FRIENDS…
Liverpool Civil Court has opened its own Twitter Account. @court_civil THE ACCOUNT The account opened today has the byline “Judges and staff at Liverpool civil courts engaging with court users, at times of Covid 19 and hopefully beyond” THE…
NOTICE FROM THE DCJ IN MANCHESTER: ALL FACE TO FACE HEARINGS UP TO THE 31ST MARCH ARE ADJOURNED
The DCJ in Manchester has issued the following notice. “NOTICE TO COURT USERS All face-to-face hearings due to take place today and up to and including Tuesday 31 March 2020 are hereby adjourned. Further directions will be issued in…
TERMINATING A CFA WITH GOOD REASON: SOLICITORS ARE ENTITLED TO THEIR COSTS FROM THE CLIENT: DECISION UPHELD BY THE COURT OF APPEAL
In Butler v Bankside Commercial Ltd [2020] EWCA Civ 203 the Court of Appeal upheld Turner J’s decision that the wording of a conditional fee agreement on offers of settlement applies just as much to advice given by the lawyer…
CIVIL PROCEDURE AND COSTS: BLOG AND ARTICLES ROUND UP – FEBRUARY 2020
Links and articles to blog posts and articles available online in February 2020 Costs Herbert Smith Freehills Court of Appeal decision highlights indemnity costs risk where claimant pursues speculative claims and unreasonably refuses Part 36 offer Law Society Gazette PI lawyers alive…
UPDATED EDITION OF THE “DENTON RESOURCE”: THE CRUCIAL CASES
For a number of years the Sanctions Case Watch section of this blog has contained a link to the highly useful “Denton Resource”. A new edition has been published by Rachel Segal of St John’s Chambers and is available here….
FIRST CLAIM FORM CASE OF THE YEAR: SERVICE WITHOUT A SEAL IS NOT GOOD SERVICE BUT CPR 3.10 SAVED THE CLAIMANT
NB THE USE OF CPR 3.10 IS MOST PROBABLY NOT AN EFFECTIVE STRATEGY FOLLOWING THE COURT OF APPEAL JUDGMENT IN Ideal Shopping Direct Ltd & Ors v Mastercard Incorporated & Ors [2022] EWCA Civ 14. It took until the 31st January…
QOCS CONTINUE TO APPLY IN THE COURT OF APPEAL: DECISION TODAY: CLAIMANT STILL HAS THE SHIELD OF QOCS PROTECTION
I am grateful to barrister Sarah Robson for sending me a copy of the Court of Appeal judgment today in Wickes -v- Blair (No 2) Costs [2020] EWCA Civ 17. The Court of Appeal held that QOCS protection continues to…
CIVIL PROCEDURE BACK TO BASICS 71: TIME FOR SERVING THE PARTICULARS OF CLAIM: SERVE WITHIN THE FOUR MONTH PERIOD
In Maggistro-Contenta & Anor v O’Shea & Anor [2019] EWHC 3035 (Ch) Chief Master Marsh stated. “The requirement in CPR 7.4(2) that particulars of claim must be served no later than the latest time for service of the claim form has been…
SERVICE OF THE PARTICULARS OF CLAIM AND THE “TRAP FOR THE UNWARY CLAIMANT”: THE TRAP OPERATED AND RELIEF FROM SANCTIONS NOT GRANTED
The judgment of Chief Master Marsh today in Maggistro-Contenta & Anor v O’Shea & Anor [2019] EWHC 3035 (Ch) is a prime example of difficulties being caused because of a mistake in relation to the rules relating to service. It…
CIVIL PROCEDURE AND COSTS: BLOG AND ARTICLES ROUND UP – OCTOBER 2019
Here we have links to blogs and articles about civil procedure and costs from October 2019. (If you have written a blog post or article that you think should have been included in this round up please contact me and…
CIVIL PROCEDURE BACK TO BASICS 68: THE FORMAL REQUIREMENTS OF A WITNESS STATEMENT (AGAIN)
I am returning to the issue of the basic and mandatory requirements of a witness statement. Here we are looking at the very basic rules as to what should appear on the first page of a witness statement. WHY YOU SHOULD…
STAYING SANE AS A LITIGATOR 3: SLEEP
I imagine that every single medical practitioner agrees on the importance of sleep in an individual’s health. It affects both physical and mental well being. Yet lawyers are ranked second amongst the most sleep deprived professions. Studies indicate that lawyers…
CLAIMS FOR DAMAGES: WHY JUDGES GO “BACK TO BASICS”: A REMINDER FOR LITIGATORS
This is the first of a series of posts designed (to be frank) to remind people that the next edition of “Damages for Personal Injury and Death” will be published later this year. One interesting aspect of writing a book,…
SERVICE OF THE CLAIM FORM: FAILURE TO SERVE ANY DEFENDANTS WHEN APPLYING FOR AN INJUNCTION: THE GOOSE IS NOT PROPERLY COOKED…
In Canada Goose UK Retail Ltd v Persons Unknown & Anor [2019] EWHC 2459 (QB) Mr Justice Nicklin refused the claimants’ application for an injunction on several grounds. Here we look at the issues relating to service of the claim…
THE IMPACT OF FAILURE TO MITIGATE DAMAGES ON A CLAIM FOR COSTS: CLAIMANT’S COSTS CONFINED TO SMALL CLAIMS TRACK
I am grateful to Simon Fisher, Costs Lawyer at DWF Costs Ltd, for sending me a copy of the decision of District Judge Matthews in Messenger -v- Zenith Insurance (3rd July 2019). A copy of the transcript is available here….
LAWYERS – GOING ON HOLIDAY AND AVOIDING EXTRA STRESS: ADVICE FROM TWITTER
Since we are in the middle of the holiday season I have noticed how some people are reporting that going on, and coming back, from holidays is a stressful experience. I asked the lawyers (and others) on Twitter to give…
A SOLICITOR WHO FILES AN ACKNOWLEDGMENT OF SERVICE STAYS ON THE RECORD UNTIL A NOTICE OF CHANGE OR THEY MAKE AN APPLICATION TO BE REMOVED
In Ashley & Anor v Jimenez [2019] EWHC 1806 (Ch) Chief Master Marsh rejected an argument that service on a solicitor who given their address for service in the acknowledgement of service was not good service of an application. For…
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